SZCXR v Minister for Immigration & Citizenship [2007] FCA 443

FEDERAL COURT OF AUSTRALIA

SZCXR v Minister for Immigration & Citizenship [2007] FCA 443 SZCXR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2167 OF 2006

GRAHAM J

8 MARCH 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2167 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCXR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 8 MARCH 2007

WHERE MADE: SYDNEY

THE COURT:

1. Directs that the appellant appear before the court on the hearing of his appeal instituted by Notice of Appeal filed 3 November 2006 by audio link in accordance with s 47B(1)(a) of the Federal Court of Australia Act 1976 (Cth). 2. Orders that the name of the first respondent be altered to read 'Minister for Immigration and Citizenship'. 3. Orders that the appeal be dismissed. 4. Orders that the appellant pay the respondent Minister's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2167 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZCXR

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 8 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as SZCXR, is a highly educated citizen of India who holds, so he says, a Masters Degree in Public Administration from a university within Punjab. He is a Sikh. He was born on 5 February 1966 within the Punjab, an area or province within India which is predominantly occupied by or inhabited by Sikhs. He travelled to Australia on an Indian passport which was issued to him on 19 January 1994. He left India on 25 May 1995 and arrived in Australia on 26 May 1995. In his Application for a Protection Visa (866), which was lodged on 3 July 1995, he referred to the fact that he held his Master of Arts Degree in Public Administration and that he had other qualifications of a tertiary nature. 2 His Application for a Protection Visa was refused by a Delegate of the Minister on 30 April 1996. He was notified of that refusal by a letter dated 1 May 1996. On 31 May 1996 he applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's Delegate's decision. He was invited to a hearing before the Tribunal to give oral evidence if he wished to do so on 15 September 1997. In response to the invitation he indicated that he did not want any witness 'due to purpose of privacy please'. 3 On 2 December 1997 the Tribunal Member who was assigned to consider his Application for Review concluded that the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). Accordingly, it was found that the appellant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act') for a Protection Visa. The Tribunal affirmed the decision of the Minister's Delegate not to grant the appellant a Protection Visa. 4 Since 2 December 1997 the appellant has been involved in a number of court proceedings directed at challenging the decision of the Tribunal Member. Most important for present purposes was an Application for Review filed by the appellant in this Court on 30 December 1997 seeking review of the Tribunal's decision of 2 December 1997. That application came before Wilcox J of this Court on both 9 April and 16 April 1998 after an initial directions hearing on 11 February 1998 before his Honour. 5 On 11 February 1998 the appellant was represented by a Mr Ram Ravi Singh Khalsa, a registered migration agent. Mr Khalsa was granted leave to appear on behalf of the appellant provided that an authority in his favour was filed and served no later than the following day. That in fact occurred. By the authority dated 11 February 1998 the appellant authorised Mr Khalsa to assist him in his Application for Review by, amongst other things, preparing or helping to prepare documents and other papers, advising or seeking advice about the Application, preparing or helping to prepare the proceedings before a Court or review authority in relation to the Application, and representing or assisting to represent the appellant in proceedings before a Court or a review authority in relation to the Application. The authority went on to authorise the Court to deal with Mr Khalsa as if it was dealing with the appellant personally in relation to any proceedings with regard to the appellant's migration matter. 6 On 9 April 1998 the application before Wilcox J was listed at the request of Mr Khalsa who proceeded to seek an adjournment of the hearing which had been fixed for 16 April. His Honour pointed out to Mr Khalsa that the hearing had been fixed two months previously and his Honour did not think it appropriate to postpone the matter because of a failure of the Legal Aid Commission to reach a decision on an application for legal aid which had been made shortly before the date upon which the matter was mentioned. 7 His Honour took into account the fact that the appellant through Mr Khalsa had already obtained advice from counsel as to the merit of the appellant's Application. Evidence was placed before the Court in the form of an opinion of experienced counsel in migration matters who had advised that an Application for Review on the part of the appellant would not be successful. 8 His Honour proceeded to deal with the Application for Review which was before him on 16 April 1998 without any further Application having been made by the appellant for an adjournment. It would appear that the tape recording of the proceedings before the Tribunal which the appellant had attended had not been transcribed at the time of the hearing before his Honour and there was no evidence before him as to what had passed at the Tribunal hearing. 9 The appellant took no steps to ensure that relevant material was obtained for presentation to the Court. Indeed, whilst Mr Khalsa appeared for the appellant before Wilcox J, the appellant himself did not see fit to attend. However, Wilcox J was prepared to deal with the matter before him on the basis of allegations made by Mr Khalsa as to what had passed at the Tribunal hearing. 10 Submissions were put by Mr Khalsa in relation to the appellant's case which his Honour described as 'very thorough and put in a manner calculated to do the best he could for' the appellant. Four points were advanced by Mr Khalsa for the appellant and these were dealt with individually by Wilcox J in his reasons for judgment. In his reasons for judgment Wilcox J observed that more than half of the population of the Punjab were Sikhs. 11 The Tribunal Member had, as noted by his Honour, accepted that the evidence supported a conclusion that persecution of people on the basis that they had been politically active because of Punjabi independence was now nearly non-existent. It was limited to people with a high profile such as terrorists or human rights activists. It was not suggested by Mr Khalsa that the appellant fell into either of those categories. 12 Mr Khalsa, on behalf of the appellant, put to Wilcox J that he did not accept the view of the situation in the Punjab drawn by the Tribunal Member but his Honour pointed out that that was a matter for the Tribunal not for the Court, it being one of fact. 13 His Honour was unable to find any legal error on the face of the Tribunal's decision. His Honour observed that it set out the legal principles and applied them in an exemplary way. His Honour could not see that the review had been conducted otherwise than fairly or that there had been any denial of substantive justice from a procedural point of view. 14 His Honour considered that the appellant was not in any way disadvantaged by the absence before him of the transcript given the manner in which his Honour was prepared to address the issues. In the circumstances the Application was dismissed with costs. 15 Six years later on 9 March 2004 the appellant instituted proceedings in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal of 2 December 1997. That Application was the subject of several amendments. My understanding is that it was dismissed for default on the part of the appellant, who failed to appear before the Court at the hearing which was set down for 3 May 2006. It is acknowledged by the appellant that he did not attend on that day and orders were made dismissing his Application in his absence. The reason proffered for his non-attendance was that his then solicitor had inadvertently recorded the matter as being one which provided for a hearing on 10 May 2006 rather than 3 May 2006. 16 On 6 July 2006 Federal Magistrate Lloyd-Jones apparently set aside the order of dismissal for non-attendance in accordance with rule 16.05(2) of the Federal Magistrates Court Rules 2001. 17 A Further Amended Application in the Federal Magistrates Court proceedings was filed on 2 August 2006. That Application was heard by Federal Magistrate Jarrett on 19 October 2006. His Honour dealt with the matter and delivered reasons for judgment on that day. He ordered that the Application filed 9 March 2004 and the Amended Application filed 1 March 2005 be dismissed. He also ordered the appellant to pay the respondent Minister's costs fixed in the sum of $9500. 18 It is from that decision of Federal Magistrate Jarrett that an appeal has been brought by the appellant in this Court by Notice of Appeal filed 3 November 2006. It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial. The Tribunal Member conducting an inquiry is obliged to be fair; however, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. 19 In a case such as that brought by the appellant under his Application for Review to the Tribunal it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Refugees Convention had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which he may have chosen not to embark upon (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]-[58]). 20 The reasons for decision of the Tribunal Member of 2 December 1997 were recorded on some 23 pages of typed script. They dealt exhaustively with the claims and evidence of the appellant and recorded the findings and reasons of the Tribunal Member. On the question of relocation, it is appropriate to observe that in the section entitled 'claims and evidence' the Tribunal Member recorded: 'The ability of Sikhs to relocate in India is a significant issue in this case.' 21 In the course of the Tribunal's 'FINDINGS AND REASONS' the following, amongst other things, was recorded: 'The Tribunal finds that while in India the Applicant has suffered some difficulty and abuses of his human rights including arrest and detention as a result of a perception by authorities that he may be involved with Sikh separatists. After his arrests over a period of three years he spent a short time in detention which indicates he was considered by authorities to be a person with a low political profile.' 22 Later the Tribunal found that the appellant was not an individual with an established history of terrorist associations or an established profile as a human rights advocate and that the chances of him facing Convention related difficulties on return to India were remote. Ultimately, the Tribunal said: The Tribunal does accept that the Applicant comes from a region where there has been considerable violence perpetrated by the police and some Sikh separatists. However, there is no evidence to suggest that the Applicant, himself, now or in the reasonably foreseeable future, falls into the category of persons at risk and he has demonstrated, and there is evidence to show, that he could reasonably be expected to find protection through relocation within his country of nationality to avoid any difficulties he may face. Having taken the Applicant's personal circumstances into account the Tribunal finds there are no grounds to suggest that he could not relocate to avoid any difficulties he may face in his home village. He has demonstrated that he is able to move around India.' 23 The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as previously indicated. 24 The learned Federal Magistrate comprehensively addressed the issues of res judicata, issue estoppel and Anshun estoppel which are thrown up by this case. The problem confronting the appellant in the proceedings before the Federal Magistrates Court and on the current appeal is that Wilcox J decided the first Application for Review of the Tribunal's decision adversely to the appellant and ordered that that Application be dismissed on 16 April 1998. It can readily be discerned from the appellant's several Applications to the Court since 2 December 1997 that the appellant is simply not willing to accept the 'umpire's decision'. 25 The issues raised by the Amended Application described as the Further Amended Application of 2 August 2006 were all either dealt with by Wilcox J in his reasons for judgment in respect of the first Application or issues that properly belonged to the subject of the earlier litigation and which the appellant exercising reasonable diligence might have brought forward on the hearing of the first Application. It is clear that the appellant is unwilling to accept that he has had his day in Court and lost. He fails to accept that the law in this country does not allow limitless attacks on the same Tribunal decision. 26 In the course of his oral submissions in respect of the grounds of appeal contained in his Notice of Appeal, the appellant indicated that the decision of the Tribunal member was, and I paraphrase, 'unfavourable for me, so that's why I bring Notice of Appeal in the Federal Court of Australia'. The appellant indicated that he wanted to obtain a different and better result than he had obtained in the Tribunal on 2 December 1997. The principles in relation to res judicata, issue estoppel and Anshun estoppel were the subject of consideration by me in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975, a judgment which I delivered on 15 July 2005. 27 I would direct attention in particular to paragraphs [30] to [38] inclusive. Absent special circumstances, it would be inappropriate for the Court to allow the appellant to use the current Application to attack the decision of the Tribunal of 2 December 1997 which could also be seen as a collateral attack on the correctness of the judgment of Wilcox J. For circumstances to be 'special circumstances', they must be 'exceptional'; see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [31] to [33] inclusive and [38] and Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 132 FCR 222. 28 The first two grounds in the Notice of Appeal presently before the Court challenge the application by Jarrett FM of the principles of estoppel and res judicata. No submission has been put which demonstrates error on the part of the Federal Magistrate in the application of those principles. It is true that Jarrett FM had the benefit of a transcript of the Tribunal's proceeding which Wilcox J did not have, but Wilcox J was content to deal with the matter before him on the assertions made by the appellant's agent as to what had transpired at the Tribunal hearing. It was open to the appellant to secure a transcript and place it before the Court constituted by Wilcox J, which the appellant failed to do. The lack of a transcript before Wilcox J does not bring the case within the principle of special circumstances which is a recognised exception to Anshun estoppel. 29 In relation to grounds 3 to 6 in the Notice of Appeal, nothing has been advanced which demonstrates jurisdictional error on the part of the Tribunal Member, or an issue which could not have reasonably been brought by the appellant when his case was before Wilcox J. They certainly do not give rise to any issues which fall within the established meaning of 'special circumstances'. 30 The appellant has also filed an eight-page document dated 26 February 2007, headed 'Appellants Written Submissions'. Much of the material contained in that document seeks a merits review of the Tribunal's decision. Reference is made to certain sections of the Act, such as s 91R, which simply had no application to the appellant's Application for Review when it was decided by the Tribunal on 2 December 1997. No relevant jurisdictional error has been indicated, nor has any issue been advanced that would not properly be the subject of a finding of res judicata, issue estoppel or Anshun estoppel. 31 I see no error in the learned Federal Magistrate's consideration of the appellant's Further Amended Application of 2 August 2006. In my opinion his Honour correctly decided that the Application filed 9 March 2004 and the Amended Application filed 1 March 2005 be dismissed. It may have strictly been unnecessary for him to make a formal order in respect of the Application as filed on 9 March 2004. 32 Even if the appellant had advanced a case which might have established jurisdictional error in relation to which the Court could grant relief, it must be remembered that constitutional writ relief is discretionary. One of the circumstances in which it would be appropriate to decline relief to an applicant would be where an applicant, or appellant, has been guilty of unwarrantable delay or has acquiesced in the invalidity of which he now complains, or has waived it. 33 It would seem to me that there would be good reason for refusing this appellant any relief even if he were otherwise entitled to it in a proper exercise of the Court's discretion in that regard. I will not take the time to provide any greater detail as to the prolonged history of his Applications and the history of the matter generally. Suffice it to say that there was complete inaction on the part of the appellant between the date of Wilcox J's decision on 16 April 1998 and the appellant's Application to be added to the Muin and Lie class action (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966) in about May 2002. 34 In my opinion the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.